Birmelin v. Gist

• Decision Date: 30 June 1954
• Docket Number: No. 33790,33790
• Citation: 162 Ohio St. 98,120 N.E.2d 711
• Parties: , 54 O.O. 32 BIRMELIN v. GIST.
• Court: Ohio Supreme Court

Page 98

162 Ohio St. 98

120 N.E.2d 711, 54 O.O. 32

BIRMELIN v. GIST.

No. 33790.

Supreme Court of Ohio.

June 30, 1954.

Syllabus by the Court

1. Under the guest statute, Section 6308-6, General Code, Section 4515.02, Revised Code, one who is riding in a motor vehicle with the owner-operator or person responsible for the operation thereof is a guest and not a paying passenger, unless there is shown a contractual arrangement, express or implied, for the payment of compensation to the owner or driver for the transportation furnished or he is rendering a benefit to the driver primarily for the attainment of some objective of the latter.

2. In such case a mere offer by the rider to pay for the gasoline on a trip or to furnish some other reciprocal favor for the accommodation of the ride does not furnish the basis for a contractual relationship, unless there is evidence that such payment or furnishing formed the basis of such a contractual arrangement as would give the owner or driver a right to recover in an action at law on the offer made by the rider.

On January 19, 1951, Nellie Birmelin, administratrix of the estate of Phyllis Marfia, hereinafter designated plaintiff, instituted an action for wrongful death against Martha Gist, administratrix of the estate of Richard Gist, hereinafter designated defendant, and Carl M. McAninch and The Glenn Cartage Company. The latter two parties compromised with plaintiff for the sum of $500, and they were dismissed from the action before the trial thereof.

The plaintiff's petition alleges that decedent Marfia at the time of her death was residing in Mansfield and working in Cardington; that, as a part of her wages, her employer agreed to furnish her daily transportation to and from Mansfield; that on August 31, 1950, her employer hired one Gist to transport Marfia from Cardington to Mansfield; that on September 1, 1950, at aobut 12:30 a. m., while Marfia was riding in an automobile operated by Gist, in accordance with said arrangement, it became involved in a head-on collision; that at the time of the accident it was raining and the roadway was wet and slippery; that Gist, knowing of such conditions, operated the automobile over the wet and slippery highway, around curves and to his left of the center of the highway at a speed greater than was reasonable under the circumstances and conditions namely, in excess of 50 miles per hour without regard to the safety of Marfia and knowing that his conduct would in all probability result in Marfia's injury and death; and that she was instantly killed as a result of the collision.

Defendant filed an answer admitting the appointment and qualification of both plaintiff and defendant as administratrices of the estates, respectively, of Marfia and Gist, and denying generally the allegations of plaintiff's petition.

Marfia was 25 years of age and was living with her mother and three-year old son in Mansfield. She was divorced and her son's father was contributing $15 per week for the son's support. Since Marfia's death, the father has had custody of the son. Marfia had worked for a Catherine Lanzendorfer in Cardington for a period prior to her last employment by Lanzendorfer, and beginning Monday, August 28, 1950, Marfia was re-employed by Lanzendorfer in Cardington, her hours being from 6 p. m. until midnight. Lanzendorfer was the proprietress of a tavern or beer parlor. On Monday night, August 28, 1950, one Brake drove Marfia from Cardington to Mansfield, and on Tuesday night Lanzendorfer drove Marfia home, but there is no evidence as to who drove her home on Wednesday night. On Thursday night, September 1, Marfia arrived in Cardington for work, coming from Mansfield by bus. At about 9 p. m. she left Lanzendorfer's place with Brake. He testified that they drove around the country until about 11:30 p. m., at which time they came back to the Lanzendorfer Tavern. Two customers who were in the tavern at the time shortly thereafter left, leaving Brake, Marfia, Gist, Beverly Wesson and Lanzendorfer. Brake, Marfia, Gist and Wesson were sitting on stools along the bar, Lanzendorfer was working back of the bar, and all were talking. Brake testified that 'Mrs. Lanzendorfer told Phyllis that she made arrangements with Dick to take Phyllis home,' and that Lanzendorfer had said 'she was going to buy Dick's gasoline to take Phyllis home.' Brake testified also that this conversation was in the presence of Gist, and on cross-examination Brake repeated his statement that Lanzendorfer told Marfia that, as she could not take her home that evening, she had asked Gist to take her home and she was going to buy the gasoline. Brake testified, in addition, that Gist did not say anything at the time of this conversation, but that it was in his presence although he (Brake) did not know whether Gist heard it.

Shortly thereafter, Marfia, Gist, Wesson and Lanzendorfer all entered Gist's automobile and, with him at the wheel, they started for Mansfield, 30 miles away, on U. S. route 42. There was a dispute in the testimony with reference to the weather and the condition of the road. The driver of a truck following the Gist car testified that it was not raining and that the road was dry. The driver of the truck with which the Gist car collided testified that it was raining and that the road was wet. The testimony was that, as the Gist car traveled along, it would slow down and then speed up; that at times it would veer over to its left side of the road, once, clear to the left side berm; that just before the collision it had been traveling on the right side of the road for some little time; and that, as it approached the McAninch truck coming in the opposite direction, the Gist car veered to its left, causing a head-on collision which resulted in the instant deaths of all four of its occupants. There was no testimony that Gist's car ever went more than 40 miles per hour.

At the conclusion of plaintiff's evidence and at the close of the case, defendant moved for a directed verdict, both of which motions were overruled. The jury returned a verdict for plaintiff. Defendant filed a motion for judgment notwithstanding the verdict, which motion was overruled and judgment was entered on the verdict. Defendant's motion for a new trial was overruled.

An appeal was taken to the Court of Appeals which affirmed the judgment of the Court of Common Pleas.

The cause is in this court upon the allowance of a motion to certify the record.

Long, Anderson & Green, Shelby, and Collis Gundy Lane, Columbus, for appellant.

Joseph A. Bayer and William Calhoun, Mansfield, for appellee.

STEWART, Judge.

The bases for defendant's claim that she was entitled to a directed verdict in the trial court is that Marfia was a guest of trial court is that Marfia was a guest of Gist, the owner and operator of the automobile in which such decedent was riding when she met her death, and that, therefore, defendant is not liable for the damages arising from Marfia's death. Accordingly, other than the question as to willful or wanton misconduct, there are presented to us two questions: One, whether the conversation between Lanzendorfer and Marfia was legally admissible in evidence, and, two, if it was admissible, whether there was sufficient evidence to be submitted to the jury upon the question of establishing such a contractual arrangement for the transportation of Marfia from Cardington to Mansfield as to constitute her a paying passenger rather than a guest of Gist.

Section 6308-6, General Code, Section 4515.02, Revised Code, reads as follows:

'The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator owner or person responsible for the operation of said motor vehicle.'

Defendant earnestly contends that Lanzendorfer's statements to Marfia should have been rejected as hearsay evidence. If such statements had been rejected, it is obvious that there would have been no evidnece to show the status of Marfia other than that of guest in the automobile at the time of her death.

The general rule applicable to such evidence is stated in 20 American Jurisprudence, 521, Section 608, as follows:

'In the absence of statute, the death of a declarant is not in itself a ground for invoking an exception to the hearsay rule which renders unsworn statements inadmissible in evidence. Under certain circumstances, however, statements made by a person since deceased are admissible under an exception to such rule, based on the ground of necessity. It has been asserted that while declarations of deceased persons are always to be received with caution, the conventional objection that evidence consisting of the alleged declarations of deceased persons is so easily fabricated that it is open to suspicion concerns the weight, rather than the competency, of such proof. On principle, such declarations are not admitted as of necessity if other competent evidence is available. A condition imposed generally in admitting the declarations of deceased persons in evidence is that they appear to have been made without motive on the part of the declarant to state an untruth. Another condition which has been imposed in admitting such declarations is that the declarant be shown to have had knowledge of the facts stated.

'If a declarant is dead, the general rule is that statements made by him against his pecuniary or proprietary interest are admissible even as between third parties.'

It might be claimed in the present case that Lanzendorfer's statement that she was going to pay for Gist's gasoline was against her pecuniary interest, and thus the statement was admissible. However, it would not be...